Professional Responsibility
Graham Strong
Fall 2013
I got an A+ with this outline.
Professional Responsibility Outline:
· Basic principles of the law of professional responsibility:
o Lawyers still subject to all the laws that govern normal people.
§ Accomplice liability is particularly relevant: If you aid or encourage someone to commit a crime, you’re liable as an accomplice.
§ Client can sue for professional malpractice or breach of contract and recover damages.
§ Agency law.
§ Rule 11 Sanctions for frivolous claims.
§ Some states (CA) have extra statutes that govern this conduct.
o Each state has its own set of rules for professional conduct; promulgated by highest courts in each state.
§ These rules are backed up with power to sanction attorneys. Possible punishments…
· Temporary suspensions.
· Disbarment (semi-permanent, you can be reinstated).
· Private or public reprimand. No actual consequences but you look bad.
§ All states but CA base their rules on the ABA’s model rules.
o Rule 8.4: The Master Misconduct Rule.
§ (a): Professional misconduct to violate model rules, attempt to violate, assist/induce other to violate, violate through acts of others.
§ (b): Misconduct to commit a crime that “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.”
· Whether or not you’re acting in capacity of a lawyer.
· “A lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.”
o Crimes that involve violence are definitely included.
o “Crimes of personal morality” like soliciting a prostitute used to be included but not any more.
· The comment to 8.4 says that “a pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.”
§ (c): Misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
· Doesn’t have to even be illegal.
· Acquitted of perjury? Not scot free. Independent disciplinary committee could still decide you lied under C&C standard.
§ (d): Misconduct to engage in conduct that’s prejudicial to the administration of justice.
· Thrown in as a catch-all residual requirement to capture violations of well-known professional norms.
o Lying on the bar application: Rule 8.1.
§ MR only reaches conduct that happened before you become an attorney to a very limited extent Rule 8.1 applies to an applicant for admission to the bar as well as a lawyer.
§ 8.1 forbids applicant for bar application from “knowingly [making] a false statement of material fact” or “[failing] to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.”
§ Even if you weren’t subject to the MR when you did that stuff, it’s still unethical to include a bunch of lies on your application.
o Reporting other parties’ misconduct:
§ 8.3(a): “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
§ (b) “A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.”
§ (c) “This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.”
· Jurisdiction
o Jurisdiction of rules of professional conduct: Rule 8.5.
§ Under MR 8.5, “[a] lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.”
§ 8.5(a) also says that “A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.”
· Some states call this “disbarment” even though you were never admitted in that state anyway.
§ Hypo: John is admitted to the bar in Jurisdictions A and B but not C.
· He can be disciplined in A under 8.5.
· He can be disciplined in C under 8.5(a) if he solicited legal services there, etc. but not otherwise.
o Choice of law: MR 8.5(b)
§ Conduct related to matter before a tribunal:
· 8.5(b)(1): For conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits apply, unless the rules of the tribunal provide otherwise.
· This rule is necessary because it won’t work to have different tribunals applying different standards: You might end up in a catch-22 situation where you’d be both required and forbidden from doing something by inconsistent rules.
§ Conduct not related to matter before tribunal (contract, will, transaction):
· 8.5(b)(2): For any other conduct, the rules of the jurisdiction in which the conduct occurred apply, unless the predominant effect of the conduct was elsewhere, in which case that jurisd
y brother.
· Court holds this isn’t protected by ACP because daughter was in the room.
· Common interest doctrine doesn’t apply because mom and daughter don’t necessarily have the same interest in the will issue; they may really be adverse in fact.
· Not a privileged third party because Lynch was with it enough to communicate with attorney on her own; if it had truly been necessary for daughter to be there to explain or translate, this would have applied.
o ACP: The crime-fraud exception:
§ Attorney client privilege does not apply where legal representation was secured in furtherance of intended or present, continuing illegality.
§ Usually formulated: Communications are not privileged when…
· Client’s purpose in communicating with a lawyer…
· Is to use that lawyer’s advise or assistance…
· In furtherance of an intended or continued crime or fraud.
§ Discussion of past crime or fraud is still privileged of course.
§ You can advise a client what the consequences of conduct might be, but you can’t cross the line into advising how to commit a crime.
· Client wants advice about what would happen if he skipped out on bail? Arguable about whether purpose is furtherance of crime or not.
· Client wants advice about which state to try and flee to? Absolutely not privileged and you’re probably liable as an accomplice for failure to appear if you answer.
§ Policy: Seems to give clients an incentive to be less candid with attorneys, but I guess we live with it rather than have attorneys giving crime advice.
§ Purcell v. District Attorney, MA 1997.
· Tyree, apartment building super, is fired; he calls his lawyer Mr. Purcell about the firing and gave Purcell the distinct impression that he was going to burn down the building.
· Purcell called the police; when the police arrived on the scene it became very apparent that he really was getting ready to burn that mother down, so Tyree was arrested for attempted arson.
· Court holds that this communication was privileged by ACP, which meant that Purcell didn’t have to testify.
o Tyree was calling for advice about the firing/eviction, not about any plan to burn down the building.
ACP wasn’t waived by Purcell’s phone call because the ACP is the client’s to waive, not the attorney’s.
